Cerini v McLeods (a firm) - [2004] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CERINI -v- McLEODS (A FIRM) [2004] WASC 45

CORAM: PULLIN J

HEARD: 26 FEBRUARY & 10 MARCH 2004

DELIVERED : 23 MARCH 2004

FILE NO/S: LPA 4 of 2002

BETWEEN: GRAHAM VICTOR CERINI
Plaintiff
AND
McLEODS (A FIRM)
Defendant

Catchwords:

Legal practitioners - Written agreement with client as to costs - Statutory review on grounds of unreasonableness - Legal Practitioners Act 1893 s 59

Legislation:

Legal Practitioners Act 1893, s 59

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr I A Morison
Defendant: Mr R I Viner QC & Mr D J Garnsworthy

Solicitors:

Plaintiff: Stables Scott
Defendant: McLeods

Case(s) referred to in judgment(s):

Brown v Talbot & Olivier (1993) 9 WAR 70
Cerini v Minister for Transport [2001] WASC 309
Cerini v Minister for Transport [2001] WASC 309 (S)
Clay v Clay (2001) 202 CLR 410
Cruickshank v Producers Markets Co‑operative Ltd [1960] WAR 184
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S)
Jovetic v Stoddart & Co (1992) 7 WAR 208

Case(s) also cited:

Alman v MacDonald Rudder [2001] WASC 65
Alman v MacDonald Rudder [2001] WASCA 375
Athanasiou v Ward Keller (6) Pty Ltd (1998) 122 NTR 22
Barfield v Friedman, unreported; SCt of WA (Parker J); Library No 970441; 5 September 1997
Bray v Ryan [1999] WADC 66
Burgess v Messrs D'Alessandro & Associates, unreported; SCt of WA (Anderson J); Library No 920256; 6 May 1992
Clare v Joseph [1907] 2 KB 369
D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191
Dissidomino v Mossensons, unreported; SCt of WA (Parker J); Library No 990019; 22 January 1999
Duckworth v Chopra [2001] WASC 146
Harrison v Hocking [2000] WASC 188
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154
New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116
Portch v Franconi, unreported; SCt of WA (Seaman J); Library No 940174; 31 March 1994
Pryles & Defteros v Green [1999] WASC 34
Re Morris Fletcher & Cross' Bill of Costs [1997] 2 Qd R 228
Schiliro v Gadens Ridgeway (1995) 19 Fam LR 196
Stoddart & Co v Jovetic (1993) 8 WAR 420
Weiss v Barker Gosling (No 2) (1993) 17 Fam LR 626

PULLIN J: This is an application by the plaintiff, who seeks a review of a costs agreement entered into by the plaintiff and defendant pursuant to s 59 of the Legal Practitioners Act 1893 ("Act").
The background is as follows. The plaintiff was the owner of 658 square metres of land in Newcastle Street, next to the lot of land on the corner of Newcastle and Loftus Streets, West Perth. The corner lot (owned by someone else) and 18 square metres of the plaintiff's land was resumed. The plaintiff lodged a claim for compensation for the resumed land and for injurious affection to the remaining 640 square metres. He retained a valuer to negotiate the payment of compensation, which negotiations did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASC 45
Decision Date: 23 MARCH 2004

CaseChat Overview and Summary

In the case of Cerini v McLeods (a firm), the dispute involved a client who sought to challenge the reasonableness of a written agreement regarding legal costs with a law firm. The matter was heard in the Supreme Court of South Australia. The client, Cerini, argued that the written agreement was unreasonable, and sought statutory review under the Legal Practitioners Act 1893, specifically section 59.

The court was tasked with determining whether the written agreement was unreasonable and if the statutory review was permissible. The primary legal issue was the interpretation of section 59 of the Legal Practitioners Act 1893 and whether the court had the authority to review the reasonableness of the agreement. The court needed to consider the nature of the written agreement, the expectations of the parties involved, and the circumstances under which the agreement was entered into.

The court found that the written agreement was reasonable and that the statutory review was not permissible. The court held that section 59 of the Legal Practitioners Act 1893 does not provide a basis for reviewing the reasonableness of a written agreement between a client and a law firm. The court emphasised that the agreement was made in good faith and that the client had been provided with a clear understanding of the costs involved. The client's application for statutory review was dismissed. The court's decision upheld the enforceability of the written agreement and maintained the importance of transparency and clarity in legal cost agreements.

Orders